The Senate vote in plain English

Posted Wed, August 4th, 2010 4:35 pm by Lisa McElroy

It's almost here . . . the Senate vote to confirm Elena Kagan as the 112th Justice of the United States Supreme Court. But, you might ask, can you really say at this point that the Court should be purchasing a leather chair for the soon-to-be fourth female Justice? Yes, given the Democratic majority in the Senate and the confirmed votes of several Republicans, Kagan's transition from Solicitor General to Associate Justice sometime in the next few days is all but assured.

Assuming that the Senate vote goes forward as anticipated tomorrow, what should we expect to see? Well, first the Senate will probably debate the nomination for a little while longer, even though the final vote is a fait accompli. Unless there's a Perry Mason moment, the Senators' statements and speeches won't be designed to convince their colleagues to vote one way or another. Instead, they're hoping to be televised, both so that their constituents can see them taking a stand and so that party loyalists can take note of their positions.

After we hear more of what we have already heard since Kagan was nominated this spring (she was never a judge, she wrote some slightly controversial memos as a law clerk, she took a stand for gays and lesbians at Harvard, she's smart, she's a coalition builder, and she eats Chinese food on Christmas), the Senate will finally vote. In a vote of this historical significance, the Senate will take a traditional roll call, with each Senator voting "yea" or "nay," and we'll probably hear from all one hundred. Kagan will likely watch the vote as America does, perhaps from home, perhaps joined by family.

Let's assume the vote goes as predicted. She'll celebrate. So when will she become a Justice? Based on what other Justices have done in the past, the new Justice Kagan will probably take the constitutional oath of officewithin a day or two after Senate confirmation, allowing her to get started at work right away. In Justice Sotomayor’s case, that came three days after Senate approval: the Senate voted on August 5, and she was sworn in at a private ceremony on August 8. Once she has taken her oath, Kagan can perform all of the duties of her office; there is no need to await the formal investiture ceremony.

Typically, a new Justice confirmed while the Court is in summer recess does not have a formal investiture ceremony until closer to the opening of the Court’s next Term. In Justice Sotomayor’s case, however, that ceremony was held on September 8, primarily because the Court was returning early for oral arguments the next day.In Kagan’s case, the investiture ceremony — and the walk down the steps with the Chief Justice — may be closer to the scheduled opening of the new Term, on the first Monday in October (this year, October 4).

What's this about walking down the steps? Well, there are several traditions "“ many quite charming "“ that accompany a Justice's investiture. After taking a second oath called the judicial oath (most likely administered by the Chief Justice in the Supreme Court courtroom), the new Justice sits in the chair once occupied by the late Chief Justice John Marshall. Marshall was the author of one of the Court's best-known opinions, tMarbury v. Madison, and is widely regarded as the greatest Justice in history; new Justices may hope (who knows?) to absorb just a bit of wisdom from the almost two-hundred-year-old leather. (Note: In the modern era, a retiring Justice's law clerks typically purchase her chair for her). Second, the new Justice takes her seat on the bench "“ always the seat furthest to the left of the Chief Justice, who sits in the middle. And finally, the Chief Justice traditionally escorts the new Justice down the forty-four steps in front of the Supreme Court . The media and friends take photos, and the new Justice poses for photos with family.

As soon as the Senate votes to confirm, many of the three-hundred-plus people who work at the Supreme Court will ramp up for Justice Kagan's arrival. Court staff are known for their efficiency, speed, and attention to detail; they can move a new Justice into her chambers, books unpacked and pictures hung, in less than a day. Meanwhile, the staff in the Clerk's Office "“ who are responsible for the many documents that circulate through the Court, like cert. petitions and briefs in granted cases, will be rallying to get her copies of anything and everything she'll need to read before the long conference in September, at which the Justices will meet to discuss all of the cert. petitions (over fifteen hundred!) that come in over the summer. Which cases will the Court hear this Term? Justice Kagan will want to be an integral part of that conversation, even as she takes on the junior Justice's traditional role of passing notes out and bringing coffee in through the conference room door. The chefs in the Court dining room will learn her dietary preferences, she'll be assigned a locker in the robing room, and, yes, a new leather chair will be purchased just for her "“ one she'll sit in for what seems likely to be decades to come.

Finally, Justice Kagan will have to choose staff, namely law clerks and office staff. Because she has not previously been a judge, she can't call on former clerks to serve in her new chambers. Quite likely, she'll ask some current clerks at the Court to stay on for another year, in part for efficiency, in part because they know the ropes around the Court and can help her get up to speed. Similarly, as Chief Justice Roberts and Justice Sotomayor did, she may ask some of Justice Stevens's staff to stay on temporarily, even as she brings in her own staff who have worked with her in some capacity over the years.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.